(PC) Moore v. Martinez, No. 1:2017cv01249 - Document 18 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS that the Court Dismiss the 1 Case for Plaintiff's Failures to Prosecute, State a Claim, and to Comply with Court Orders; ORDER to ASSIGN Case to District Court Judge signed by Magistrate Judge Jeremy D. Peterson on 11/1/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due with Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMEKA EUGENE MOORE, 12 13 14 Plaintiff, v. JOEL MARTINEZ, 15 Defendants. 16 17 Case No. 1:17-cv-01249-JDP FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THE CASE FOR PLAINTIFF’S FAILURES TO PROSECUTE, TO STATE A CLAIM, AND TO COMPLY WITH COURT ORDERS ORDER TO ASSIGN CASE TO DISTRICT COURT JUDGE FOURTEEN-DAY DEADLINE 18 19 20 Demeka Eugene Moore (“plaintiff”) is a former state prisoner proceeding without counsel 21 in this civil rights action brought under 42 U.S.C. § 1983. On February 26, 2018, the court 22 screened the complaint and concluded that plaintiff had stated no cognizable claim. ECF No. 11. 23 The court required plaintiff, within thirty days, to file a first amended complaint curing the 24 deficiencies identified by the court, a notice of voluntary dismissal, or a notice of election to stand 25 on the complaint. Id. Plaintiff did not respond within the prescribed period, thereby disobeying 26 the court’s order. 27 On April 9, 2018, the court issued an order to plaintiff to show cause why the case should 28 not be dismissed for failure to state a claim, failure to obey a court order, and failure to prosecute. 1 1 ECF No. 13. On April 23, 2018, plaintiff responded by filing a motion for an extension of time to 2 amend his complaint, ECF No. 14, and the court granted this request, allowing plaintiff until July 3 20, 2018, ECF No. 16. Plaintiff failed to respond within the deadline, again disobeying the 4 court’s order. Nonetheless, considering plaintiff’s pro se status and in the interests of justice, the 5 court gave plaintiff a final chance to explain why the court should not dismiss the case for his 6 failure to prosecute. ECF No. 17. The court ordered plaintiff to show cause why this action 7 should not be dismissed for failure to comply with a court order. Id. Plaintiff once again failed to 8 respond. 9 The court may dismiss a case brought by a prisoner seeking relief against a governmental 10 entity or officer or employee of a governmental entity for plaintiff’s failure to state a claim. See 28 11 U.S.C. § 1915A(a). Here, the court found that plaintiff failed to state a claim, ECF No. 11, so the 12 case may be dismissed on this basis. 13 The court may also dismiss a case for plaintiff’s failure to prosecute or failure to comply 14 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 15 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court 16 has duties to resolve disputes expeditiously and to avoid needless burden for the parties. See 17 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 18 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 19 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 20 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 21 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 22 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 23 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 24 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 25 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 26 27 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 28 2 1 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 2 dismissal. 3 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 4 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 5 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 6 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 7 weighs in favor of dismissal. 8 As for the availability of lesser sanctions, at this stage in the proceedings there is little 9 available to the court that would constitute a satisfactory lesser sanction while protecting the court 10 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 11 considering plaintiff’s incarceration and in forma pauperis status, and—given the stage of these 12 proceedings—the preclusion of evidence or witnesses is not available. While dismissal is a harsh 13 sanction, the court has already found that plaintiff’s complaint failed to state a claim. 14 15 16 17 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. After weighing the factors, including the court’s need to manage its docket, the court finds that dismissal is appropriate. The court will recommend dismissal without prejudice. 18 Order 19 The clerk of court is directed to assign this case to a district judge who will review the 20 findings and recommendations. 21 Findings and Recommendations 22 The court recommends that the case be dismissed without prejudice for plaintiff’s failures 23 to state a claim, to prosecute, and to comply with court orders. 24 The undersigned submits these findings and recommendations to the U.S. district judge 25 presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of 26 the service of the findings and recommendations, the parties may file written objections to the 27 findings and recommendations with the court and serve a copy on all parties. The document 28 containing the objections must be captioned “Objections to Magistrate Judge’s Findings and 3 1 Recommendations.” The presiding district judge will then review the findings and 2 recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections within 3 the specified time may waive their rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 4 (9th Cir. 2014). 5 6 IT IS SO ORDERED. 7 Dated: 8 November 1, 2018 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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